Massachusetts case law defines “control” of a firearm in different ways depending on the offense.
If a gun is not secured in a locked container, it must be “carried by or under the control of the owner.” See G.L. c. 140, Sec. 131L(a).
A separate statute (G.L. c. 269, Sec. 10) prohibits the unlicensed “possession” or “control” of a firearm.
Occasionally a defendant will be charged with both improper storage of a firearm and unlicensed possession of a firearm.
In such cases, the prosecutor will seemingly speak out of both sides of his mouth, claiming (1) that the defendant failed to keep his firearm under his control and (2) that the defendant was in control of a firearm without a license.
The prosecutor can get away with making these contradictory statements, because Massachusetts’ appellate courts have ruled that “control” has different meanings under the two statutes.
The key case on this issue is Commonwealth v. Cantelli which holds that under the firearm storage statute (G.L. c. 140, Sec. 131L(a)):
a firearm is within the ‘control’ of its owner . . . only when that person has it sufficiently nearby to prevent immediately its unauthorized use. Thus, “control” for purposes of this statute is distinguishable from the element of possession (and particularly constructive possession) in other criminal statutes, where the “ability” and “intention” to exercise control over the object is sufficient. Whether a particular gun is under a defendant’s control will depend on the facts and circumstances of any given case. The relevant factors include the firearm’s location, its proximity to its . . . owner, and that person’s ability to reach immediately the gun. (Citations and quotations omitted.)
To read the full text of Commonwealth v. Cantelli click here.